New York Times Writer Loses Bid for FBI Data

MANHATTAN (CN) - The FBI can shield its terrorism-investigation data from the prying eyes of New York Times investigative journalist Charlie Savage, a federal judge ruled.

Savage repeatedly sought FBI data through the Freedom of Information Act for a series of articles exposing how federal authorities vigorously probed thousands of people without reasonable suspicion.

The first request, placed in November 2009, demanded:

"Statistics on the aggregate results of assessments the FBI has conducted using the new authorities provided by the AG Guidelines that were put into effect in December 2008. Breaking down the numbers into each of the six types of assessments, how many were converted into predicated investigations (preliminary or full investigations) based upon the information developed in those assessments and how many were closed? How many are still ongoing? Please provide the most up to date numbers available at the time the reply to this request is provided. (Note: the existence of these statistics was referenced in the FBI's response to question 15 from Senator Feingold in the written questions for the record arising from the March 25, 2009, Senate Judiciary Committee hearing on oversight of the FBI. The FBI answers were sent to Congress on Sept. 15, 2009.)"

Savage later narrowed the request to the FBI's response to then Sen. Russ Feingold's questions.

On March 7, 2011, the FBI gave Savage the unredacted Senate letter containing the assessment statistics, which stated:

"The FBI has initiated 11,667 Type 1 and Type 2 assessments, 3,062 of which are ongoing. 427 preliminary and full investigations have been opened based upon information developed in these Type I and Type 2 assessments. 480 Type 3, 4, 5, and 6 assessments have been initiated, of which 422 remain open."

Savage used this information for an article published weeks later, but U.S. District Judge Robert Patterson said the actual statistics did not live up to the Times' headline.

"On April 15, 2011, during the pendency of this motion, Mr. Savage, apparently recognizing that the headline for his ensuing article on March 26, 2011 - 'FBI Casts Wide Net Under Relaxed Rules for Terror Inquiries, Data Show' - was not supported by the data released, submitted two additional FOIA requests to the FBI seeking further breakdown for assessment classification types to reflect separately the number of assessments of federal criminal activity and assessments of national security threats," Patterson wrote Tuesday.

The FBI, meanwhile, told the judge at a hearing that the agency fulfilled its obligations.

"During oral argument, defendants pointed out that on August 1, 2011, Mr. Savage's April 15, 2011 FOIA request 'was released in full except for program-specific assessment statistics that were withheld under FOIA exemption because they were classified under Executive Order,'" Patterson explained.

"Plaintiff did not rebut this statement during argument nor is the court aware of any administrative appeal on this issue," he added. "In any event, plaintiffs have failed to exhaust their administrative remedies under FOIA as to the April 15, 2011 FOIA request."

New York Times attorney David McCraw told Courthouse News that he was "disappointed" by the ruling and believed that the sought-after information was an "important disclosure."

While he said he was happy that the FBI released data on two occasions, he added, "As it stands, we're going to have to keep putting in FOIA requests."

"It helps the public understand what the FBI's doing in the interest of national security," McCraw said in a phone interview.

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